- (1.) We have heard Shri Abhinav Mehrotra for the assessee-appellant. Shri Shambhu Chopra appears for the revenue.
(2.) The Income Tax Appeal (Defective) No.36 of 2013 arises out of an order dated 30.8.2011 passed by Income Tax Appellate Tribunal, Agra Bench, Agra in ITA No.55/Agr/2007 for assessment year 2003-04. The appeal has been preferred on following substantial questions of law:- 1. Whether the Tribunal has committed error of law in omitting to adjudicate the merits of addition U/s 68 and that the 3rd Member order has, in reference, merely confined to the legal issue in question; whereas, no such embargo was contained in the reference order by the Ld. President ITAT, as reproduced in the order of the 3rd Member. Further it is categorically mentioned that the matter was argued by the Authorised Representative of the assessee on the merits of addition before the 3rd Member, as well. 2. Whether in sustaining the aforesaid additions, the Tribunal erred in law in not appreciating that there was no embargo for the third Member (as nominated by the Ld. President ITAT) to adjudicate the controversy on merits, as well and has erred in limiting the scope of reference by the Ld. President ITAT.
(3.) The connected Income Tax Appeal No.67 of 2013 arises out of an order dated 11.1.2013 passed by the Income Tax Appellate Tribunal, Agra Bench, Agra in M.A. No.03/Agra/2012 in ITA No.55/Agra/2007 for the assessment year 2003-04 by which a Miscellaneous Application filed by the assessee-appellant under section 254 (2) of the Act was dismissed. The appeal has been preferred on following substantial questions of law:- "1) Whether the Tribunal has committed error of law in dismissing the Application of the Assessee U/s 254 (2), holding that there was no occasion for it to deal with the merits of addition, in a case of reference of a ground of appeal to the third Member, who did not deal with the merits of such addition in his order. 2)Whether the Tribunal has committed error of law in holding that non-adjudication of a ground of appeal on merits does not fall within the province of a "mistake apparent on record" and ousts the jurisdiction of the Tribunal, U/s 254 (2) of the Income Tax Act. 3) Whether the Tribunal has committed a further error of law in dismissing the Application of the Assessee, U/s 254 (2), by holding that the assessee has raised a highly debatable issue, whereas, it is a pure question of fact, as to whether the ground of appeal stood decided on merits or not and hence the ITAT, committed perversity in recording such findings as the same are contrary to the material and evidence available on record.";